Davis v. HSBC Bank ( 2009 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GARY DAVIS, an individual on            
    behalf of himself; GARY DAVIS, as
    Private Attorney General and on
    behalf of all others similarly
    situated,
    Plaintiffs-Appellees,        No. 08-57062
    v.                            D.C. No.
    HSBC BANK NEVADA, N.A., a                  2:08-CV-05692-
    national bank; HSBC FINANCE                     GHK-JC
    CORPORATION, a Delaware                        OPINION
    corporation; BEST BUY CO., INC., a
    Minnesota corporation; BEST BUY
    STORES, L.P., a Virginia limited
    partnership,
    Defendants-Appellants.
    
    Appeal from the United States District Court
    for the Central District of California
    George H. King, District Judge, Presiding
    Argued and Submitted
    February 9, 2009—Pasadena, California
    Filed February 26, 2009
    Before: Andrew J. Kleinfeld, Carlos T. Bea, and
    Sandra S. Ikuta, Circuit Judges.
    Opinion by Judge Bea;
    Concurrence by Judge Kleinfeld
    2779
    2782              DAVIS v. HSBC BANK NEVADA
    COUNSEL
    Stuart M. Richter and Gregory S. Korman, Katten Muchin
    Rosenman LLP; for the defendants-appellants.
    Drew E. Pomerance and Erin M. LaBrache, Roxborough,
    Pomerance & Nye LLP; for the plaintiffs-appellees.
    OPINION
    BEA, Circuit Judge:
    Defendants appeal the district court’s order granting plain-
    tiff Gary Davis’s motion to remand Davis’s putative class
    action to state court.1 The only issue on appeal is whether Best
    Buy, a nationwide electronics retailer, has its principal place
    of business in the state of California. We reverse.
    Plaintiff Gary Davis, as a private attorney general on behalf
    of himself and a putative class of similarly situated California
    consumers, sued HSBC Bank Nevada, N.A., HSBC Finance
    Corporation, Best Buy Company, and Best Buy Stores, L.P.
    in California Superior Court and alleged claims for unfair
    competition under Cal. Bus. & Prof. Code § 17200, false
    advertising under § 17500, and common law fraud in the
    nature of concealment. Davis’s complaint alleges the defen-
    dants defrauded California customers by offering credit cards
    without adequately disclosing the annual fee the customers
    would be charged for use of the card.
    1
    We have jurisdiction over this interlocutory appeal under 28 U.S.C.
    § 1453(c)(1).
    DAVIS v. HSBC BANK NEVADA                          2783
    The defendants removed the action to federal district court
    and based on the Class Action Fairness Act of 2005
    (“CAFA”). Davis filed a motion to remand the action to state
    court and contended that the local controversy exception, 28
    U.S.C. § 1332 (d)(4),2 barred the exercise of federal jurisdic-
    tion. The district court granted the motion to remand, and the
    defendants timely appealed.
    The only issue on appeal is whether Best Buy Stores has its
    principal place of business in California. If not, Best Buy
    Stores is not a citizen of California, the local controversy
    exception does not apply, and federal jurisdiction under
    CAFA exists. We conclude Best Buy Stores does not have its
    principal place of business in California.
    [1] A limited partnership or a corporation is a citizen of (1)
    the state under whose laws it is organized or incorporated; and
    (2) the state of its “principal place of business.” 28 U.S.C.
    § 1332(c)(1). In this circuit, we apply two tests to determine
    the state of a corporation or partnership’s principal place of
    business. First we apply the “place of operations” test. Under
    that test, a corporation’s principal place of business is the
    state containing “ ‘a substantial predominance of corporate
    operations.’ ” Tosco Corp. v. Communities for a Better Env’t,
    
    236 F.3d 495
    , 500 (9th Cir. 2001) (per curiam) (quoting
    Indus. Tectonics, Inc. v. Aero Alloy, 
    912 F.2d 1090
    , 1092 (9th
    Cir. 1990)). If no state contains a “substantial predominance”
    of corporate operations, we apply the “nerve center” test,
    which locates the corporation’s principal place of business in
    2
    The local controversy exception bars the exercise of federal jurisdic-
    tion when greater than two-thirds of the class members are citizens of the
    state in which the action was originally filed, the principal injuries about
    which the plaintiffs complain occurred in the state in which the action was
    originally filed, and at least one defendant, from whom significant relief
    is sought and whose conduct forms a significant basis for the claims
    asserted, is a citizen of the state in which the action was originally filed.
    28 U.S.C. § 1332(d)(4).
    2784               DAVIS v. HSBC BANK NEVADA
    the state where “the majority of its executive and administra-
    tive functions are performed.” 
    Id. [2] Determining
    whether a “substantial predominance” of
    a corporation’s operations take place in a given state “plainly
    requires a comparison of that corporation’s business activity
    in the state at issue to its business activity in other individual
    states.”3 
    Id. We employ
    a number of factors to determine if a
    given state contains a substantial predominance of corporate
    activity, including: “the location of employees, tangible prop-
    erty, production activities, sources of income, and where sales
    take place.” 
    Id. Substantial predominance
    does not require the
    majority of the corporation’s operations to occur in a single
    state, but the corporation’s activity in one state must be “sub-
    stantially larger” than the corporation’s activity in any other
    state. 
    Id. Applying this
    standard, the district court concluded Best
    Buy Stores had a “substantial predominance” of its activities
    in California. Best Buy Stores has more stores in California
    than in any other state, more employees in California than in
    any other state, and more sales in California than in any other
    state. As the district court explained, “California has 15%
    more stores, 40% more employees, and 46% more sales than
    Texas, the second highest state.”
    [3] The substantial predominance test does not require that
    a majority of corporate operations occur in a single state. But
    the test requires a “substantial” predominance, not mere pre-
    dominance. In Tosco, for example, we held that a gasoline
    manufacturer and retailer was a citizen of California when
    21% of its employees, nearly 50% of its refining capacity,
    half its lubricant blending facilities, 35% of its retail loca-
    tions, 15% of its convenience stores, and 35% of its invento-
    3
    Were we writing on a clean slate, we would find much in favor of the
    rule suggested by the concurrence. But we see ourselves as bound by the
    holding in Tosco.
    DAVIS v. HSBC BANK NEVADA                  2785
    ries were located in 
    California. 236 F.3d at 501-02
    . In that
    case, the defendant also had management operations in Cali-
    fornia and, in previous litigation, had maintained that it was
    a citizen of California. 
    Id. at 502-03.
    Tosco’s operations
    reflected not only that it had more operations in California
    than in any other state, but that it had substantially more oper-
    ations.
    Accordingly, we have stated that when a corporation has
    operations spread across many states, the nerve center test is
    usually the correct approach. Breitman v. May Co. Cal., 
    37 F.3d 562
    , 564 (9th Cir. 1994) (“May Company has corporate
    operations in over thirty states. Because no one state contains
    a substantial predominance of the corporation’s business
    activities, the place of operations test inappropriate.”). Cf.
    Industrial 
    Tectonics, 912 F.3d at 1093
    (“ITI’s operations are
    divided between only two states: California and Michigan.
    ITI’s operations are not so spread out that one must look to
    the corporate headquarters to find a principal place of busi-
    ness . . . .”). When a corporation’s activities are spread over
    many states, it is much less likely operations in any one state
    will “substantially” predominate over operations in other
    states.
    [4] We have not previously given precise definition to the
    meaning of the term “substantially” in the substantial predom-
    inance test. We do not here adopt any hard and fast rule or
    percentage by which the operations in one state must exceed
    those in other states. But in determining whether a corpora-
    tion’s operations “substantially” predominate, we must take
    into consideration both the nature of the corporation’s busi-
    ness activities and the purposes of the corporate citizenship
    statute. The purpose of diversity jurisdiction, and the citizen-
    ship determinations associated with it, is to avoid the effects
    of prejudice against outsiders. Industrial 
    Tectonics, 912 F.2d at 1094
    . Thus, the term “substantially” must be defined with
    an eye to ensuring that a corporation is a citizen of the place
    in which it is least likely to suffer prejudice. See 
    id. 2786 DAVIS
    v. HSBC BANK NEVADA
    [5] It is clear that Best Buy Stores’ California operations
    predominate over its operations in other states. But we cannot
    say that these operations “substantially” predominate over
    Best Buy Stores’ operations in other states. Best Buy Stores
    is a nationwide retailer with stores in 49 states, the District of
    Columbia, and Puerto Rico. At most, the statistics demon-
    strate that Best Buy Stores’ California retail activities roughly
    reflect California’s larger population. If a corporation may be
    deemed a citizen of California on this basis, nearly every
    national retailer—no matter how far flung its operations—will
    be deemed a citizen of California for diversity purposes. Such
    a result is untenable. With operations distributed widely
    across the country, Best Buy Stores is no more familiar to
    Californians than it is to Texans or Illinoisans, and hence no
    less likely to suffer prejudice in California than elsewhere.4
    [6] We do not require that courts apply a per capita
    approach to determining a corporation’s principal place of
    business in every case. However, we hold that a nationwide
    retailer with operations spread across many states will be a
    citizen of California only when a substantial predominance of
    its activities are located in California; it will not be a citizen
    of California merely because its operations in California cater
    to California’s larger population.
    Accordingly, we reverse the judgment of the district court
    and remand the case for further proceedings consistent with
    this opinion.
    REVERSED and REMANDED
    4
    Indeed, both of these states have more Best Buy stores per capita than
    does California. Best Buy has fewer stores in California per person than
    it does on average nationwide.
    DAVIS v. HSBC BANK NEVADA                     2787
    KLEINFELD, J., writing separately:
    I concur in the result. My reasoning is somewhat different.
    The majority opinion extends Tosco Corp. v. Communities
    for a Better Environment1 beyond its facts. In my view, Tosco
    was overwritten, and I would confine it to its facts. In Tosco,
    an oil company was suing an environmental advocacy group
    for defamation and related torts, and claimed to be a citizen
    of Connecticut in order to get diversity jurisdiction.2 We
    affirmed a district court decision, which held that the oil com-
    pany had its principal place of business in California, and
    adopted as our own the district court decision, rather than
    writing a decision independently.3 The most striking fact in
    the case, more than the difference in percentage of refineries,
    gas stations and employees between one state and another, is
    that Tosco had itself successfully claimed in previous litiga-
    tion that its principal place of business was California.4 All
    that the district court and we had to decide in Tosco was
    whether some corporate changes in the three years between
    the two lawsuits changed the oil company’s citizenship. The
    corporate changes did not amount to enough to change its citi-
    zenship. A district court decision often includes, quite prop-
    erly, multiple reasons for affirmance, but an appellate
    decision has different purposes. We should have picked the
    best reason, that Tosco was still a citizen of the state where
    three years earlier it successfully claimed to be one. Since we
    did not, we must struggle with Tosco and follow it if it
    applies, but I think we could confine Tosco to its facts and
    distinguish it.
    1
    
    236 F.3d 495
    (9th Cir. 2001) (per curiam).
    2
    
    Id. at 497,
    500.
    3
    
    Id. at 497.
    Compare 
    id. at 497-502
    with Tosco Corp. v. Cmtys. for a
    Better Env’t, 
    41 F. Supp. 2d 1061
    (C.D. Cal. 1999).
    4
    
    Id. at 502.
    2788                DAVIS v. HSBC BANK NEVADA
    We held in Industrial Tectonics, Inc. v. Aero Alloy that the
    a corporation’s “principal place of business” is “where a
    majority of a corporation’s business activity takes place in
    one state.”5 Tosco says the opposite, that the “principal of
    business” “does not require the majority of a corporation’s
    total business activities to be located in one single state, but
    instead, requires only that the amount of [the] corporation’s
    business activity in one state be significantly larger than any
    other state in which the corporation conducts business.”6
    Without the per capita qualification the majority articulates,
    that means that the “principal place of business” of most
    national corporations would be in the most populous state,
    California. Even with it, this approach makes the wrong com-
    parison, largest to next-largest state, instead of the right one,
    state to everywhere the business operates, to determine “prin-
    cipal place of business” by the “place of operations” test.
    Comparing one state to another unreasonably lends itself to
    designating a “principal place of business” with the “place of
    operations” test when the “nerve center” test ought to be used.
    There is no reason why the burden of proof should be on the
    party urging use of the “nerve center” test, or why the “place
    of operations” test ought to be the default.7 For a national cor-
    poration, the opposite presumption makes more sense. The
    Seventh Circuit uses only the “nerve center” test.8 There can
    5
    
    912 F.2d 1090
    , 1092 (9th Cir. 1990) (emphasis added); see also Mon-
    trose Chem. Corp. of Cal. v. Am. Motorists Ins. Co., 
    117 F.3d 1128
    ,
    1134-35 (9th Cir. 1997) (following the “majority” holding in Industrial
    Tectonics); Danjaq, S.A. v. Pathe Commc’ns Corp., 
    979 F.2d 772
    , 776
    (9th Cir. 1992) (following the “majority” test from Industrial Tectonics).
    6
    
    Tosco, 236 F.3d at 500
    .
    7
    See 
    Tosco, 236 F.3d at 499
    .
    8
    See, e.g., Metro. Life Ins. Co. v. Estate of Cammon, 
    929 F.2d 1220
    ,
    1223 (7th Cir. 1991). The First, Second, and Fourth Circuits apply the
    nerve center test when a corporation’s operations are decentralized and
    spread across multiple states. See, e.g., Diaz-Rodriguez v. Pep Boys Corp.,
    
    410 F.3d 56
    , 61 (1st Cir. 2005); Athena Auto., Inc. v. DiGregorio, 
    166 F.3d 288
    , 290-91 (4th Cir. 1999); R.G. Barry Corp. v. Mushroom Makers,
    Inc., 
    612 F.2d 651
    , 655 (2d Cir. 1979).
    DAVIS v. HSBC BANK NEVADA                       2789
    only be one “principal place of business,” and for a corpora-
    tion that operates in multiple states “principal” does not
    merely mean the state with more of some activities than any
    other individual state. State-to-state comparison, as suggested
    in Tosco and followed by the majority, only assures identifi-
    cation of the state that has “substantially” more than the state
    it is compared to. Identification by this comparison of the
    state that substantially predominates for the entire corporation
    (which, as “principal” suggests, is what we are trying to iden-
    tify) will have little to do with the correctness of the method-
    ology, and more to do with fortuity. Rather than limiting
    application of what is plainly the wrong test for national cor-
    porations (the place of operations test), the majority opinion
    extends Tosco. This extension generates excessive unpredict-
    ability and encourages expensive litigation to identify the
    “principal place of business” for corporations that operate in
    multiple states. One great appeal of the nerve center test is
    that it is generally faster, more certain, and cheaper to apply
    than the place of operations test.
    FACTS
    Plaintiff Gary Davis sued Best Buy and HSBC, the bank
    that issues the Best Buy credit card, in the Superior Court of
    the State of California. The complaint claims that Best Buy
    and HSBC defrauded their California customers by offering
    them credit cards without adequately disclosing the annual fee
    they would be charged. The case was brought as a class
    action, on behalf of all Californians who obtained the credit
    card and were charged a fee. The defendants removed the
    case to the United States district court pursuant to 28 U.S.C.
    § 1453(b),9 a provision of the Class Action Fairness Act of
    2005.10
    9
    28 U.S.C. § 1453(b); see Abrego Abrego v. Dow Chem. Co., 
    443 F.3d 676
    , 681 (9th Cir. 2006) (explaining the relationship between 28 U.S.C.
    § 1332(d) and § 1453(b)).
    10
    Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified as amended in scat-
    tered sections of 28 U.S.C.).
    2790                 DAVIS v. HSBC BANK NEVADA
    All that matters on appeal is whether Best Buy is a citizen
    of the State of California. There are actually two Best Buy
    defendants in this case, a corporation that is a holding com-
    pany, and a limited partnership that owns and operates the
    national chain of Best Buy retail stores. The parties do not put
    at issue the holding company’s Minnesota citizenship. They
    dispute only whether the limited partnership is a citizen of Cali-
    fornia.11 The limited partnership operates retail stores in 49 of
    the 50 states, plus Puerto Rico and the District of Columbia.
    The stores sell consumer electronics such as television sets
    and computers, video games, DVDs, cameras, and home
    appliances.
    Generally, a company is a “citizen” of at most two states,
    the state of incorporation for corporations12 or state of organi-
    zation for unincorporated associations,13 and the state where
    it has its “principal place of business.”14 Since Best Buy is
    organized under the laws of Virginia,15 and is therefore a citi-
    11
    Since only the citizenship of the limited partnership is at issue, “Best
    Buy” will be used to refer to the limited partnership, Best Buy Stores L.P.,
    unless otherwise indicated.
    12
    We do not consider corporations incorporated in multiple states or
    address whether such corporations are citizens of every state in which they
    have been incorporated. See Charles Alan Wright et al., 13B Federal Prac-
    tice and Procedure § 3626 (2d ed. & Supp. 2008).
    13
    28 U.S.C. § 1332(d)(10) (“For purposes of this subsection and section
    1453, an unincorporated association shall be deemed to be a citizen of the
    State where it has its principal place of business and the State under whose
    laws it is organized.”) The Best Buy limited partnership is organized under
    the laws of Virginia. For qualifying class actions such as this one, CAFA
    abrogates the traditional rule that an unincorporated association shares the
    citizenship of each of its members for diversity purposes, and renders
    inapplicable the procedure in Federal Rule of Civil Procedure 23.2, which
    generally determines whether a federal court has subject matter jurisdic-
    tion over an action involving an unincorporated association. See Wright et
    al., supra note 12, at § 3630, at 667.
    14
    
    Id. § 1332(c)(1)
    (providing that “a corporation shall be deemed to be
    a citizen of any State by which it has been incorporated and of the State
    where it has its principal place of business”).
    15
    Cf. § 1332(d)(10).
    DAVIS v. HSBC BANK NEVADA                          2791
    zen of Virginia, the only issue is whether its “principal place
    of business” is California.16 The argument for California citi-
    zenship is basically that Best Buy operates more stores,
    employs more people, and sells more goods in California than
    in any other state. All of this is true. The argument against is
    basically that California is only a small part of Best Buy’s
    national operations, sales, and workforce, and its national
    locus of decision making is in Minnesota. This is also true.
    There can be only one “principal place of business” for
    diversity purposes, which of course is what the word “princi-
    pal” implies.17 Best Buy has about 11% of stores, 13% of
    sales and 13% of employees in California, compared with
    about 10% of stores, and 9% of both sales and employees in
    its next-most active state (Texas). This works out to be
    roughly 16% more stores, 45% more sales, and 45% more
    employees than Texas. Though its California business greatly
    exceeds its Texas business, Best Buy does 87% to 89% of its
    business and has all of its central management outside of Cali-
    fornia. “Principal,” the statutory term, means principal for the
    corporation’s entire business, not “more than any other single
    state.”
    ANALYSIS
    Under our precedents, we use the “place of operations” test
    16
    We apply the same tests to determine the “principal place of business”
    for corporations and unincorporated associations. See, e.g., United Com-
    puter Sys., Inc. v. AT&T Corp., 
    298 F.3d 756
    , 763 (9th Cir. 2002).
    17
    Because we interpret the term “principal place of business,” this hold-
    ing applies to both corporations and unincorporated associations. See 28
    U.S.C. § 1332(c)(1) & (d)(10) (providing that for the purposes of CAFA
    an unincorporated association “shall be deemed to be a citizen of the State
    where it has its principal place of business); see, e.g., Capitol Indem.
    Corp. v. Russellville Steel Co., 
    367 F.3d 831
    , 836-37 (8th Cir. 2004); Gaf-
    ford v. Gen. Elec. Co., 
    997 F.2d 150
    , 161 (6th Cir. 1993); J.A. Olson Co.
    v. City of Winona, 
    818 F.2d 401
    , 406 (5th Cir. 1987); cf. Breitman v. May
    Co. Cal., 
    37 F.3d 562
    , 564 (9th Cir. 1994).
    2792                 DAVIS v. HSBC BANK NEVADA
    to determine a corporation’s “principal place of business” if
    (and only if) one state has a “substantial predominance” of the
    corporation’s business activities.18 If no state has a “substan-
    tial predominance” we use the “nerve center” test to deter-
    mine that corporation’s “principal place of business.”19 Our
    sister circuits generally apply some combination of the nerve
    center,20 the “corporate activities” or place of operations,21 and
    the “total activity” tests.22 Despite varying verbal formulas,
    18
    Tosco Corp. v. Cmtys. for Better Env’t, 
    236 F.3d 495
    , 500 (9th Cir.
    2001) (per curiam); see also United Computer 
    Sys., 298 F.3d at 763
    ; Mon-
    trose Chem. Corp. of Cal. v. Am. Motorists Ins. Co., 
    117 F.3d 1128
    , 1134
    (9th Cir. 1997); 
    Breitman, 37 F.3d at 564
    .
    19
    See 
    Tosco, 236 F.3d at 500
    .
    20
    The Seventh Circuit applies the nerve center test. See, e.g., Metro. Life
    Ins. Co. v. Estate of Cammon, 
    929 F.2d 1220
    , 1223 (7th Cir. 1991).
    21
    The Third Circuit applies a variant of the place of operations test,
    which it calls the “center of corporate activities” or “operating assets” test.
    See, e.g., Mennen Co. v. Atl. Mut. Ins. Co., 
    147 F.3d 287
    , 291 (3d Cir.
    1998); Kelly v. U.S. Steel Corp., 
    284 F.2d 850
    , 853-54 (3d Cir. 1960). It
    primarily looks for “the headquarters of day-to-day corporate activity and
    management.” See 
    Mennen, 147 F.3d at 291
    . The First, Second, and
    Fourth Circuits have adopted both the nerve center test and place of opera-
    tions test. See, e.g., Diaz-Rodriguez v. Pep Boys Corp., 
    410 F.3d 56
    , 61
    (1st Cir. 2005); Athena Auto., Inc. v. DiGregorio, 
    166 F.3d 288
    , 290-91
    (4th Cir. 1999); R.G. Barry Corp. v. Mushroom Makers, Inc., 
    612 F.2d 651
    , 655 (2d Cir. 1979); see also Mullins v. Beatrice Pocahontas Co., 
    489 F.2d 260
    , 262 (4th Cir. 1974). Which test they apply depends on the struc-
    ture of the corporation. See, e.g., Athena 
    Auto., 166 F.3d at 290-91
    . They
    apply the nerve center test when corporate operations are decentralized
    and spread across a number of states. See, e.g., 
    Diaz-Rodriguez, 410 F.3d at 61
    . When a corporation has substantially all of its physical operations
    concentrated in one state, they apply the place of operations test. See, e.g.,
    Peterson v. Cooley, 
    142 F.3d 181
    , 184-85 (4th Cir. 1998).
    22
    The total activities test incorporates both the nerve center and corpo-
    rate activities test. Courts in the Fifth, Sixth, Eighth, Tenth, and Eleventh
    Circuits apply this test. See, e.g., Capitol 
    Indem., 367 F.3d at 835-36
    ;
    Amoco Rocmount Co. v. Anschutz Corp., 
    7 F.3d 909
    , 914-15 (10th Cir.
    1993); 
    Gafford, 997 F.2d at 162-63
    ; J.A. 
    Olson, 818 F.2d at 411-12
    ;
    Vareka Invs., N.V. v. Am. Inv. Props., Inc., 
    724 F.2d 907
    , 909-10 (11th
    Cir. 1984); see also Assoc. Petroleum Producers, Inc. v. Treco 3 Rivers
    DAVIS v. HSBC BANK NEVADA                          2793
    their approaches generally amount to about the same thing as
    Industrial Tectonics, Tosco, and this separate opinion.23
    I.   Industrial Tectonics and Tosco
    In Industrial Tectonics, Inc. v. Aero Alloy,24 the corpora-
    tion’s business activities were located in just two states, Cali-
    fornia and Michigan. We concluded that California was the
    corporation’s principal place of business for the purpose of
    diversity jurisdiction, after noting that California accounted
    for 61% of sales, 69% of operating income, 64% of receiv-
    ables, and the location of 75% of its inventory.25 The Califor-
    nia plant also had nearly double the book value of the
    corporation’s only other plant in Michigan, and employed
    more than 50% of the corporation’s employees.26 Thus, by
    every measure, well over half of the corporation’s business
    activities were in California. We held that “where a majority
    of a corporation’s business takes place in one state, that state
    is the corporation’s principal place of business, even if the
    corporate headquarters are located in a different state.”27 We
    Energy Corp., 
    692 F. Supp. 1070
    , 1074-75 (E.D. Mo. 1988). The total
    activities test considers factors such as the location of the corporation’s
    “nerve center,” administrative offices, production facilities, personnel, tan-
    gible property, sales, income earned, and balances these factors based on
    the facts of the case. See, e.g., Amoco 
    Rocmount, 7 F.3d at 915
    .
    23
    See Danjaq, S.A. v. Pathe Commc’ns Corp., 
    979 F.2d 772
    , 776 (9th
    Cir. 1992) (deriving the “general rule” that a corporation’s principal place
    of business is the location of the “bulk of corporate activity, as evidenced
    by the location of daily operating and management activities”); Indus.
    Tectonics, 
    912 F.2d 1090
    , 1092 n.3 (9th Cir. 1990) (noting that the place
    of operations and nerve center tests “can be viewed as particular applica-
    tions of a general rule that the ‘bulk of corporate activity,’ as evidenced
    by operating, administrative, and management activities, determines a cor-
    poration’s principal place of business”).
    24
    
    912 F.2d 1090
    .
    25
    
    Id. at 1094.
       26
    
    Id. 27 Id.
    2794               DAVIS v. HSBC BANK NEVADA
    did not apply the nerve center test because California con-
    tained a substantial predominance of the corporation’s busi-
    ness activities.28 Our approach in Industrial Tectonics was
    consistent with our prior decisions, in which corporations
    with “substantially all” of their one (and only) business activ-
    ity in a single state were found to have their “principal place
    of business” in that one state where all the operations were locat-
    ed.29
    In Tosco Corp. v. Communities for a Better Environment30
    we held that the “place of operations” test determines a corpo-
    ration’s principal place of business “when a corporation con-
    ducts a substantial predominance of its business within a state.”31
    The emphasis in Tosco on “substantial predominance,” rather
    than “majority,” as in Industrial Tectonics, arose because the
    corporation’s business activities in Tosco were more complex
    than in Industrial Tectonics. According to the district court
    opinion we adopted, Tosco’s refinery business had a majority
    of its refineries (63%), half of its lubricant blending and pack-
    aging facilities, and almost half (40%) of its refining capacity
    in California, but only about a third (37%) of its retail loca-
    tions and inventory. California had more than twice the num-
    ber of retail locations of any other state.32 Thus, in Tosco we
    applied the “substantial predominance” inquiry mentioned but
    not used in Industrial Tectonics to analyze a corporation oper-
    ating in more than two states, with the majority of its most
    important business factor (refineries, since Tosco was an oil
    company) and 50% of the important and refinery-related pro-
    duction facilities were in California. At least on the facts con-
    28
    
    Id. 29 Bialac
    v. Harsh Bldg. Co., 
    463 F.2d 1185
    , 1186 (9th Cir. 1972); see
    also New Alaska Dev. Corp. v. Guetschow, 
    869 F.2d 1298
    , 1301 (9th Cir.
    1989); Decker Coal Co. v. Commonwealth Edison Co., 
    805 F.2d 834
    , 842
    (9th Cir. 1986).
    30
    
    236 F.3d 495
    (9th Cir. 2001) (per curiam).
    31
    
    Id. at 497.
       32
    
    Id. at 501.
                         DAVIS v. HSBC BANK NEVADA                          2795
    sidered in Tosco, we concluded that a majority of each and
    every corporate activity was not required to establish a “sub-
    stantial predominance.”33
    Neither Industrial Tectonics nor Tosco addressed compa-
    nies with no majority of any activity in one state. Tosco was
    in the business of making and selling petroleum-based prod-
    ucts, and Industrial Tectonics was in the business of making
    ball bearings. Both performed these activities largely in Cali-
    fornia, where the bulk of their production facilities were
    located. Best Buy does not conduct any of its activities largely
    in California. Though Tosco says, perhaps in dicta, that a
    majority of the corporation’s total activities are not necessary
    (Tosco did in fact maintain a majority of its refineries in Cali-
    fornia), we have never said what “substantial predominance”
    requires when no state had a majority of any activity.
    Under Tosco and Industrial Tectonics, application of the
    “place of operations” test34 requires “substantial predomi-
    nance” of the corporation’s activities in one state.35 “Substan-
    tial predominance” itself requires two things, both that
    activities in one state predominate, and also that this predomi-
    nance be “substantial.”36
    33
    
    Id. at 500.
      34
    Under the “place of operations” test, a corporation’s principal place of
    business is the state with a “substantial predominance of corporate opera-
    tions.” Indus. 
    Tectonics, 912 F.2d at 1092-93
    ; see also Danjaq, S.A. v.
    Pathe Commc’ns Corp., 
    979 F.2d 772
    , 776 (9th Cir. 1992); Co-Efficient
    Energy Sys. v. CSL Indus., Inc., 
    812 F.2d 556
    , 558 (9th Cir. 1987).
    35
    
    Tosco, 236 F.3d at 502
    ; Indus. 
    Tectonics, 912 F.2d at 1094
    ; see also
    Montrose Chem. Corp. of Cal. v. Am. Motorists Ins. Co., 
    117 F.3d 1128
    ,
    1134-35 (9th Cir. 1997).
    36
    Cf. Duncan v. Walker, 
    533 U.S. 167
    , 174 (2001) (recognizing the duty
    to give effect, if possible, to every clause and word of a statute); Exxon
    Corp. v. Hunt, 
    475 U.S. 355
    , 369 n.14 (1986) (rejecting the reading of a
    phrase that made a latter phrase surplusage); United States v. Wenner, 
    351 F.3d 969
    , 975 (9th Cir. 2003) (recognizing the same canon of statutory
    construction).
    2796                DAVIS v. HSBC BANK NEVADA
    II.    Predominance
    The term “predominance” invites arithmetic, but not merely
    arithmetic. Judgment is necessary to decide which numbers
    matter.
    In this case, the district court considered that Best Buy gen-
    erates most of its net sales, roughly 13%, in California and
    9% of its net sales in Texas, the next-most productive state.
    Taking the difference, 4%, it calculated that California
    accounted for 45% more business than Texas. Based on the
    45% difference between California (the highest37 state) and
    Texas (the next-highest state), it concluded that California had
    a substantial predominance of Best Buy’s sales. The court
    applied similar arithmetic, with similar results, to the number
    of Best Buy employees and stores in California. Based on
    these percentages of percentages, it concluded that California
    was Best Buy’s principal place of business.
    It is error to determine predominance merely by comparing
    one state to another. “Principal place of business” means prin-
    cipal place of business for the entire company. That may be
    the whole country for a nationwide business, and all of the
    states with its operations for a multi-state business. In the con-
    text of determining a corporation’s “principal place of busi-
    ness,” “predominance” should be judged against the
    corporation’s entire operations, not merely by a comparison
    of the two highest states. For Best Buy, determining predomi-
    nance requires comparing its California business to the other
    48 states, Puerto Rico, and the District of Columbia.
    A comparison between the two highest states cannot tell us
    whether the highest state has a “substantial predominance”
    because it tells us only how one state compares to another, not
    37
    I use “highest” to mean the state with the most of that factor. Factors
    include number of employees, retail stores, inventory, sales, production
    facilities. See 
    Tosco, 236 F.3d at 500
    -01.
    DAVIS v. HSBC BANK NEVADA               2797
    whether any state so predominates that it is reasonable to call
    a multi-state company a citizen of that one state. If a retailer
    has operations in all the states proportional to population, and
    we determine “predominance” just by taking the difference
    between the two highest states, California would be the “prin-
    cipal place of business” for virtually every corporation
    because of its larger population. Because a comparison
    between the two highest states tells us nothing about whether
    the highest state predominates for the entire corporation
    (which is what matters), the comparison cannot tell us enough
    about “substantial predominance” to yield the principal place
    of business.
    Determining “predominance” by comparing the operations
    in one state to the corporation’s national operations is consis-
    tent with what the court actually did in Tosco, even though the
    words can be read to say we should do what the district court
    did in this case. In Tosco, we said that “substantially predomi-
    nates . . . requires a comparison of that corporation’s business
    activity in the state at issue to its business activity in other
    individual states.”38 We applied this verbal formulation by
    calculating what percentage of Tosco’s total, national opera-
    tions occurred in California.39 It was based on this percentage
    of Tosco’s entire operations that the district court found Cali-
    fornia to predominate and that predominance to be substantial.40
    A hypothetical case illustrates why looking at the differ-
    ence between states fails to determine the “principal place of
    business.” Suppose a craft bourbon distillery, mostly discov-
    ered by tourists who arrange shipments home, ships 1 case of
    bourbon to each of the 50 states, except for Alaska, where a
    pair of tourists each ordered a case. The distillery sells twice
    as much bourbon to Alaska as to any other state, but Alaska
    only accounts for about 4% of its total sales. Although Alaska
    38
    
    Tosco, 236 F.3d at 500
    .
    39
    
    Id. at 501-02.
      40
    
    Id. 2798 DAVIS
    v. HSBC BANK NEVADA
    greatly predominates when compared to any other individual
    state (2 cases to 1), it does not “predominate” in a relevant
    way, because 4% is not close to a majority of total sales. To
    say that Alaska is the “principal place of business” and “citi-
    zenship” of this distillery, when none of its employees have
    even taken a cruise there, and all of its manufacturing facili-
    ties and 96% of its sales occur elsewhere, would be a little
    silly. Yet under a state-by-state analysis, we would look only
    at the difference between the two highest states by subtracting
    the sales in the second-highest state (1 case) from the sales in
    Alaska (2 cases), and then dividing by the sales in the second-
    highest state (1 case). By this calculation 100% more sales
    occur in Alaska than any other state, so we would (errone-
    ously) conclude that Alaska “substantially predominates” and
    is therefore the distillery’s principal place of business and citi-
    zenship.
    In order to calculate a useful percentage, one has to pick the
    numerator and denominator with a view towards what mat-
    ters. Using the next-largest state as a denominator has only a
    slight bearing on what matters, substantial predominance of
    the business’s entire operations. To determine whether opera-
    tions in a state predominate, the proper numerator is business
    occurring in the state and the proper denominator is all the
    corporation’s business.41 Net sales, tangible property, person-
    nel, production facilities, and other factors may be helpful for
    determining whether a state is the “principal place of business.”42
    Whatever the indicia are, the point of looking at them is to
    determine what state, if any, predominates relative to every-
    41
    Our precedents use the same numerator and denominator. This merely
    makes explicit the method for calculating a useful percentage. See 
    Tosco, 236 F.3d at 500
    -01; Montrose Chem. Corp. of Cal. v. Am. Motorists Ins.
    Co., 
    117 F.3d 1128
    , 1135 (9th Cir. 1997); Indus. 
    Tectonics, 912 F.2d at 1093-94
    .
    42
    See Indus. 
    Tectonics, 912 F.2d at 1094
    ; see also Montrose 
    Chem., 117 F.3d at 1135
    (examining the location of the corporation’s tangible prop-
    erty, production activities, employees, and income sources).
    DAVIS v. HSBC BANK NEVADA                   2799
    where the corporation operates, not simply where the corpora-
    tion has the most activities.
    Thus, if a retail company has sales of $65 in California, $20
    in Nevada, and $15 in Oregon, the relevant arithmetic is not
    ($65 — $20)/$20, which only tells us that 225% more sales
    occur in California than the next-largest state. It is $65/$100,
    which is California’s percentage of $100, the company’s total
    sales nationally ($65 + $20 + $15). Although both calcula-
    tions tell us that California predominates in sales, only the lat-
    ter provides a basis for concluding that California is the
    principal place of business because it is the only one that
    compares California’s operations to the company’s total oper-
    ations in all states. The former calculation only shows how
    much more activity occurs in the highest state than the
    second-highest state, which tells us nothing about whether
    any state has a predominance of its national operations.
    If this retail company also had operations in Washington,
    and its sales were $40 in California, $25 in Nevada, $20 in
    Oregon, and $15 in Washington, the first way (looking at the
    difference between states) yields the wrong answer. It shows
    a 60% “predominance” by California in total sales, while the
    correct calculation suggests California does not predominate
    as to sales, because it only accounts for 40% of total sales.
    The 60% figure, which corresponds to California’s predomi-
    nance over Nevada, is of little use in determining the “princi-
    pal place of business” for this regional corporation.
    To determine whether Best Buy’s California operations
    “predominate,” the relevant comparison is between the per-
    centage of Best Buy’s total operations in California and the
    percentage occurring elsewhere, not merely to the second-
    highest state (Texas). For factors such as sales, employees,
    and stores, the numerator is the amount of sales, number of
    employees, and number of stores in California. The corre-
    sponding denominators are the total sales, total number of
    2800                 DAVIS v. HSBC BANK NEVADA
    employees, and total number of stores for the entirety of Best
    Buy’s operations.
    As the majority says,43 diversity jurisdiction enables citi-
    zens of non-forum states a better chance of avoiding “local
    prejudice.” There is more to it, though, than avoiding the sort
    of prejudice Southerners might have had a half century or a
    century ago toward Yankees. Jurors may have no prejudice at
    all against citizens and corporations of other states, but still
    have a financial incentive to import their money. This incen-
    tive is especially strong when the corporate pockets are deep
    and the loss will not affect local employment. That may have
    been one of the reasons why Congress modified diversity
    jurisdiction in the Class Action Fairness Act.44 Diversity pro-
    tects against deep pocket justice as one form of prejudice.
    III.   Substantiality
    Finding a state that predominates nationally does not suf-
    fice to establish the corporation’s “principal place of busi-
    ness.” The predominance, under Industrial Tectonics and
    Tosco, must also be “substantial.”45 “Substantial” does not
    mean just more than any other state. Like predominance, sub-
    stantiality is judged by comparing the putative principal place
    of business to the rest of the corporation’s activities.46 The
    “totality of corporate activity,” not just one or several compo-
    43
    Op. at 2785.
    44
    See S. Rep. No. 109-14, at 11-12 (2005) (Conf. Rep.) (noting that in
    section describing abuses of jurisdiction that “an important historical justi-
    fication for diversity jurisdiction is the reassurance of fairness and compe-
    tence that a federal court can supply to an out-of-state defendant facing
    suit in state court” and commenting on cases where the out-of-state defen-
    dant was confronted with “a state court system prone to produce gigantic
    awards against out-of-state corporate defendants” (alterations omitted)).
    45
    
    Tosco, 236 F.3d at 500
    ; Indus. 
    Tectonics, 912 F.2d at 1094
    .
    46
    See Scot Typewriter Co. v. Underwood Corp., 
    170 F. Supp. 862
    , 865
    (S.D.N.Y. 1959) (holding that a corporation’s principal place of business
    “must be resolved on an over-all basis”).
    DAVIS v. HSBC BANK NEVADA                        2801
    nents of that activity, must be substantial at the corporation’s
    principal place of business.47 Thus, in Tosco we held that the
    corporation’s California operations were “substantial”
    because it had the majority of the corporation’s most impor-
    tant activity, its refineries, and 50% of the important and
    related production facilities in California. In Tosco no other
    state had comparable percentages of the other factors consid-
    ered — California had 40% of total refining capacity, and
    37% of all retail locations.48 Although California did not have
    a majority of every factor, California’s predominance in
    Tosco was “substantial” because it had a majority of one of
    them, and the other factors’ percentages were close to a
    majority and “significantly larger” than the percentages in any
    other state.49
    There are four reasons why substantiality is essential for
    proper application of the “substantial predominance” test.
    First, if mere predominance sufficed, no matter how slight,
    then a corporation’s principal place of business might change
    from year to year, or month to month, based on the routine
    vicissitudes of commerce. Second, requiring a finding of mere
    predominance, rather than substantial predominance, would
    make it likely that district and circuit courts in multiple cir-
    cuits might locate a corporation’s principal place of business
    in different states, even though each corporation can have
    only one.50 Third, a simple predominance test would result in
    California being the “principal place of business” for nearly
    every national retailer by virtue of its larger population.
    Fourth, a “slight” predominance standard would just encour-
    age expensive and fundamentally wasteful discovery, motions
    47
    Cf. id.; see also Indus. 
    Tectonics, 912 F.2d at 1094
    (examining all
    business activities occurring in California).
    48
    
    Tosco, 236 F.3d at 500
    -02.
    49
    
    Id. at 500.
      50
    See 28 U.S.C. § 1332(c)(1), (d)(10) (specifying that a corporation is
    a citizen of the state which is “its principal place of business” (emphasis
    added)).
    2802               DAVIS v. HSBC BANK NEVADA
    practice, and appeals not even focused on whether or to what
    extent the defendant wronged the plaintiff, but instead on
    where a lawsuit about those matters ought to be conducted.
    Litigation is more than burdensome enough without adding a
    trial to decide where to have the trial.
    The “substantiality” inquiry will not necessarily pinpoint a
    state in which a corporation’s business activities substantially
    predominate so that it is the “principal place of business.” The
    substantiality requirement should actually help identify when,
    despite a “predominance,” the “place of operations” test is
    nevertheless inappropriate because the corporation’s activities
    are not overwhelmingly concentrated in one place. As we
    explained in Tosco, predominance is not necessarily “substan-
    tial” if other states have comparable concentrations of the cor-
    porations’ business activity.51 Assuming a hypothetical
    business with 49% of its total activities in California, 46% in
    Nevada and 5% in Oregon has a “predominance” in Califor-
    nia, we might still conclude that this predominance was not
    “substantial” because Nevada has a “comparable” percentage
    of the corporation’s total activities and less than half of its
    activities are in California.52
    To assess whether two states are “comparable,” I would not
    depend on“per capita” analysis as the majority does. Dividing
    the amount of a business factor in a state by its population, or
    vice versa (and thus finding amount of sales “per person” or
    number of people “per store”) at most identifies cases where
    the activity in a state is disproportionate to population. But
    disproportionateness on a per capita basis can arise for rea-
    sons having nothing to do with a state being the corporation’s
    “principal place of business.”
    51
    
    Tosco, 236 F.3d at 500
    .
    52
    
    Id. at 501-02
    (examining whether other states had “comparable” con-
    centrations of the corporation’s entire operations when assessing substan-
    tial predominance).
    DAVIS v. HSBC BANK NEVADA                      2803
    Consider a hunting and fishing outfitter with 1 lodge in
    every state except Wyoming, where it has 2. “Per capita,”
    then, Wyoming is the highest state with 1 lodge per 260,000
    people. The next-highest state has 1 lodge per 620,000 people.
    On a per capita basis, the majority’s state-to-state comparison
    leads to the conclusion that the outfitter’s physical operations
    in Wyoming do “predominate” and that this predominance is
    “substantial.” But just as it was for the bourbon distillery, this
    conclusion makes little sense. It is just silly to call Wyoming
    the “principal place of business” for a company when 96% of
    its employees have never set foot in Yellowstone, and 96% of
    its physical facilities and central reservation office are located
    elsewhere. A “per capita” analysis only tells us when a state
    has more or less of a given factor than other states. It does not
    tell us anything about what really matters, which is whether
    any state predominates for the entire corporation.
    Many products appeal to specialized audiences, so that
    sales are disproportionately in a few states. For example,
    Porsches doubtless sell better to rich people, so richer states
    have disproportionately more Porsches, even with a per capita
    correction. Is Porsche’s “principal place of business” Califor-
    nia, Connecticut, or Washington D.C., just because more peo-
    ple in those places than in, say South Dakota or West
    Virginia, can afford Porsches? Because car battery blankets,
    oil pan heaters, and circulating heaters sell disproportionately
    in Fairbanks, is Alaska the principal place of business for the
    Outside companies that make them? Not by a sensible attribu-
    tion of “citizenship.”
    Because the “place of operations” test is only appropriate
    for corporations that are truly concentrated in one place,
    courts should not struggle with mathematical gyrations to
    determine whether a predominance is “substantial.” Where
    predominance is not substantial enough to be pellucid, the
    “nerve center” test applies.53 Only if the “totality of corporate
    53
    Scot Typewriter Co. v. Underwood Corp., 
    170 F. Supp. 862
    , 865
    (S.D.N.Y. 1959); see also 
    Tosco, 236 F.3d at 500
    (requiring the corpora-
    2804                 DAVIS v. HSBC BANK NEVADA
    activity in a given place . . . m[ay] be said to represent the
    ‘center of gravity’ of corporate function” is the substantiality
    requirement met.54
    The “nerve center” test55 determines a corporation’s “prin-
    cipal place of business” by looking to “where its executive
    and administrative functions are performed.”56 “In short,
    courts generally assign greater importance to the corporate
    headquarters when no state is clearly the center of corporate
    activity, and assign greater importance to the location of cor-
    porate business when substantially all business operations
    take place in a single state.”57 In Industrial Tectonics, we held
    that because “a majority” of the corporation’s business activ-
    ity took place in one state, that state was its principal place of
    business, even though the corporate headquarters were located
    in a different state.58 When no state has a substantial predomi-
    nance of the corporation’s total activities, we apply the nerve
    center test to determine the “principal place of business.”
    IV.    Best Buy
    To determine if Best Buy has its principal place of business
    in California, we look at whether California contains a “sub-
    stantial predominance” of Best Buy’s business activities. Best
    Buy’s business activities consist of its chain of Best Buy retail
    tion’s business activity in its principal place of business be “significantly
    larger” than its activities nationally); Danjaq, S.A. v. Pathe Commc’ns
    Corp., 
    979 F.2d 772
    , 776 (9th Cir. 1992) (concluding that the location of
    the “bulk” of a corporation’s activities was its principal place of business).
    54
    Scot 
    Typewriter, 170 F. Supp. at 865
    .
    55
    
    Tosco, 236 F.3d at 502
    ; Indus. 
    Tectonics, 912 F.2d at 1094
    ; see also
    Montrose 
    Chem., 117 F.3d at 1134-35
    ; Scot 
    Typewriter, 170 F. Supp. at 865
    (setting forth the “nerve center” test).
    56
    Indus. 
    Tectonics, 912 F.2d at 1092
    .
    57
    
    Id. at 1093.
       58
    
    Id. at 1094.
                        DAVIS v. HSBC BANK NEVADA                         2805
    stores that sell movies, music, and electronics in 49 states,
    Puerto Rico, and the District of Columbia. There are a total
    of 923 retail stores distributed throughout these states and ter-
    ritories. These retail stores employ 126,837 people nation-
    wide, and generated about $31.7 billion in net sales in 2008.
    To service these retail stores, Best Buy Stores owns or leases
    9 distribution centers, which have 6.3 million square feet of
    space.
    California has 103 of Best Buy’s 923 total retail stores, or
    11%. Of Best Buy’s 126,873 employees, 16,033 (13%) are in
    California. Of its $31.7 billion in total sales, California
    accounts for $4.21 billion (13%).
    Unlike in Industrial Tectonics and Tosco, Best Buy does
    not have a majority of any activity (employees, stores, etc.)
    concentrated in California. Instead, somewhere around 87%
    to 89% of Best Buy’s total operations are outside of Califor-
    nia, as is all of its national management. With far more than
    half of all activities occurring outside of California, I cannot
    conclude that Best Buy’s California operations predominate,
    let alone “substantially” predominate. Were we to accept the
    district court’s conclusion that Best Buy is a California citizen
    because it does more business there than in Texas, the Eighth
    Circuit and the district courts in Minnesota, where all of Best
    Buy’s national management and administration take place,
    would rightly scoff.59
    I do not get to comparisons of one state to another, as the
    majority does and we did in Tosco, because California does
    not have a predominance of any factor in Best Buy’s total
    activities. Absent “predominance,” there is no occasion to
    judge whether the (nonexistent) predominance is “substan-
    tial,” which one might do by asking if states have “compara-
    59
    See, e.g., Capitol Indem. Corp. v. Russellville Steel Co., 
    367 F.3d 831
    ,
    835-37 (8th Cir. 2004) (applying total activities test to determine the
    “principal place of business”).
    2806              DAVIS v. HSBC BANK NEVADA
    ble” percentages of the corporation’s entire operations.60
    Finding two states that are “comparable” means any predomi-
    nance is unlikely to be substantial.
    Since there is no state in which Best Buy conducts a sub-
    stantial predominance of its business activities, I would apply
    the nerve center test to determine its “principal place of busi-
    ness.” Minnesota, the location of Best Buy’s corporate head-
    quarters, is thus its principal place of business. Best Buy is a
    citizen of Virginia, where it is organized, and Minnesota,
    where it is managed. A company only gets two citizenships,
    so it cannot have a third where it merely has more of some
    activity or activities than any other single state.
    Though I concur in the result, I would confine Tosco to its
    facts, and clarify both the “place of operations” test itself and
    when it applies. Comparison of individual states generates
    expensive, unpredictable, and pointless litigation about corpo-
    rate citizenship, likely to lead to intercircuit conflicts about
    where national business are citizens.
    60
    See 
    Tosco, 236 F.3d at 501-02
    .
    

Document Info

Docket Number: 08-57062

Filed Date: 2/26/2009

Precedential Status: Precedential

Modified Date: 10/14/2015

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Sam Bialac, and Rental Development Corporation of America, ... , 463 F.2d 1185 ( 1972 )

Metropolitan Life Insurance Company v. Estate of Herbert ... , 929 F.2d 1220 ( 1991 )

capitol-indemnity-corporation-v-russellville-steel-company-inc , 367 F.3d 831 ( 2004 )

J.A. Olson Company v. City of Winona, Mississippi , 818 F.2d 401 ( 1987 )

Judge M. Mullins v. Beatrice Pocahontas Company , 489 F.2d 260 ( 1974 )

Carol L. Kirchner GAFFORD, Plaintiff-Appellant, v. GENERAL ... , 997 F.2d 150 ( 1993 )

barrie-m-peterson-barrie-m-peterson-trustee-nancy-a-peterson-v-william , 142 F.3d 181 ( 1998 )

Judy Breitman v. May Company California, a Division of the ... , 37 F.3d 562 ( 1994 )

Danjaq, S.A. v. Pathe Communications Corporation Mgm-Pathe ... , 979 F.2d 772 ( 1992 )

No. 99-55400 , 236 F.3d 495 ( 2001 )

Antonio Abrego Abrego v. The Dow Chemical Co Shell Oil ... , 443 F.3d 676 ( 2006 )

united-computer-systems-inc-a-california-corporation-v-at-t , 298 F.3d 756 ( 2002 )

new-alaska-development-corporation-a-new-york-corporation-v-bernd-c , 869 F.2d 1298 ( 1989 )

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